2009-106 -Approving Agreement Of Purchase And Sale And Escrow Instructions For Acquisition Of 930 University AvenueRESOLUTION 2009 -106
RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS
APPROVING AGREEMENT OF PURCHASE AND SALE AND ESCROW
INSTRUCTIONS FOR ACQUISITION OF
930 UNIVERSITY AVENUE (APN 424 -31 -064)
WHEREAS:
A. In June 2007 Council approved the sale of a 13 -acre Town -owned parcel located in Vasona Park (the
"Vasona Park Property ") to the County of Santa Clara for $6 million and the transfer to the Town of a .66 acre County -
owned parcel adjacent to Oak Meadow Park, with both properties remaining in park use in perpetuity and with a
guarantee that the County will allow Billy Jones Railroad to continue to operate on County property. Pursuant to Council
direction, the proceeds from the sale, and all interest accruing thereof, are reserved for use in acquiring and developing
community and youth sports facilities.
B. Verizon Corporation owns a 2.7 acre property (APN 424 -31 -064) located at 930 University Avenue (the
"Property "), currently used as a corporation yard, which Verizon offered for sale on the open market.
C. The Property is entirely unconstrained for development of a multipurpose sports facility.
D. The Town's offer to acquire the property was tentatively accepted by Verizon Corporation, subject to
Council's approval of the Agreement of Purchase and Sale and Escrow Instructions attached hereto as Exhibit "A" and
incorporated herein by this reference.
E. Council wishes to complete the acquisition of the Property for purposes of developing a community and
youth sports facility consistent with prior direction given with regard to the use of the proceeds of the sale of the Vasona
Park Property,
RESOLVED:
The Agreement of Purchase and Sale and Escrow Instructions for Acquisition of 930 University Avenue is
approved and the Town Manager is hereby authorized to execute the agreement in substantially the form of Exhibit "A"
hereto.
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California held
on the 21S day of September, 2009, by the following vote:
COUNCIL MEMBERS:
AYES: Diane McNutt, Joe Pirzynski, Steve Rice, Barbara Spector, Mayor Mike Wasserman
NAYS: None
ABSENT:
ABSTAIN:
SIGNED: 14
MAYOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
ATTEST:
CLERI INISTRATOR OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
AGREEMENT Or PURCHASE AND SALE
AND ESCROW INS'T`RUCTIONS
This Agreement of Purchase and Sale and Escrow Instructions (the "Agreement ")
is made as of September 1, 2009 by and between Vernon California Inc., a California
corporation ( "Seller "), and Town of Los Gatos, a municipal Corporation ( "Buyer ").
Recitals
A. Seller is the owner of the "Property" (as defined in Paragraph 1.1 below)
which inel.udes approximately Z73 acres of improved land, including a building consisting of
approximately 13,601 square feet and a building consisting of approximately 4,292 square feet
(collectively, the "Building ") commonly referred to as 930 University Avenue, Los Gatos, Santa
Clara. County, California (Assessor's Parcel No. <124 -31 -064).
B. Seller desires to sell the Property to Buyer and Buyer desires to purchase
the Property from Seller on the tennis and conditions contained in this Agreement.
THE PARTIES AGREE AS FOLLOWS:
Sale of Property PPurehase Price
1.1 &1le of Property. Seller shall sell to Buyer and Buyer shall
purchase from Seller, at the price and upon the terms and conditions set forth in this Agreement:
(i) that certain real property containing, approximately 2,73 acres of land located at 930
University Avenue, Los Gatos, Santa Clara. County, California and more particularly described
in Exhibit "l, I" (the "Land "); (ii) any improvements situated on the Land (the "Improvements ");
and (iii) all appurtenances to the Land owned by Seller, including, without limitation, all
development rights, air rights, mineral rights, water, water rights and water stock relating to the
Land (the "Appurtenant Rights "). The Land, the Improvements, and the Appurtenant Rights are
collectively referred to herein as the "Real Property." The Real Property, and the Personal
Property, if any, as described in .Paragraph 1.2 below are collectively referred to ,herein as the
"Property,"
1.2 Sale of Personal .Property Buyer acknowledges that no personal
property ( "Personal Property ") is being conveyed to Buyer pursuant to this Agreement.
1.3 P urchase, P rice. Buyer shall pay to Seller as the total purchase
price for the Property (the "Purchase Price ") the sum of $3,100,000 payable as follows:
1.,3,1 Deposit.Buyer shall deliver the SLIM of $50,000 (the
"initial Deposit ") to `Escrow J Colder "(as defined in Paragraph 2.1 below) in h nniediatOy
available funds promptly after Buyer's delivery of the partially executed Agreement. to Seller or
Escrow i- [older, Buyer acknwN and agrees that notwithstanding the initial execution of the
Agreement, no agreement shall exist between Seller and Buyer until (he Initial Deposit is
19733636,3
EXHIBIT A
delivered to Escrow Holder, and Seller shall have no obligations to Buyer with respect to the
Property until the Initial Deposit is delivered, Provided Buyer has not terminated this Agreement
prior to the end of the "Feasibility Period," as defined in Paragraph 2;9.1 below, Buyer shall
deliver an additional sum of $50,000 (the "Additional Deposit ") in immediately available funds
to Escrow Holder prior to the end of the easibility Period. Tr Buyer fails to deliver the
Additional Deposit within the time period set forth in this p<u•agraph, this Agreement shall
automatically terminate and the provisions of Paragraph 2.11 below shall apply, Escrow Holder
is irrevocably authorized and instructed to deliver the Initial Deposit and Additional Deposit
(collectively, the "Deposit ") to Seller upon the expiration of the Feasibility Period if Buyer has
not terminaled this Agreement prior to such expiration date, Buyer agrees to execute all
d.oct.nncntatioan reasonably required by Escrow Holder to effectuate the release of funds in
accordance with the terms of this Subparagraph 13, 1.
13,2 Balance, The suns of $3,000,000 (the "Balance "),
constituting the balance of the Purchase Price, shall be. deposited by Buyer in immediately
available fiends into Escrow no later than two (2) business days before the "Closing Date" (as
defined in Paragraph 2.2 below).
2. Escro Closin y Conditions,
2.1 Escrow No later than five (5) business days after the execution of
this Agreement by Buyer and Seller, Buyer and Seller shall open an escrow (the "Escrow ") with
Fidelity National Title (the "Escrow Holder ") and shall deliver a flrl.ly executed copy of this
Agreement to Escrow Holder. The deposit with Escrow Holder of (1) a fully executed original
of this Agreement and (2) the Initial Deposit by Buyer shall constitute the opening of Escrow
(the "OpenI ng of Escrow ") and authorization to Escrow Holder to act in accordance with the
terms ofthis Agreement, Escrow Holder's standard provisions are attached hereto as
Exhibit "2, 1" and shall beconne a part hereof; provided, however that if there is any conflict or
inconsistenoy between such standard provisions and this Agreement, then this Agreement shall
control.
2,2 Clo Date The Escrow shall close on November 12, 2009 (the
"Closing Date "). Notwithstanding the foregoing, the "Closing" (as defined .in Paragraph 2.7
below) or Close of Escrow shall not occur unless the conditions to the Close of Escrow set. forth
in this Agreement have been satisfied or waived, including, without limitation, (i) the conditions
set forth in Paragraphs 2,9 and 2,10 below, (ii) the condition that all itcanns described in
Paragraphs 2.5 and 2.6 below shall have been deposited with :Escrow I-lolder, and (iii) the
condition that the "Title Company" (as defined in Paragraph 2.3 below) has unconditionally
committed to issue the "Title Policy" (as defined in Paragraph 23 below). If any of such
conditions have not been satisfied or waived on or before the Closing Date, this Agreement arid
the Escrow shall teraninate; provided, however that such termination shall not affect any clainns
that either pal-ty May have against the other for any breach of this Agreement, If neither party is
in default hereunder, upon any termination of this Agreement, the provisions of Paragraph 2,11
shall apply.
23 'title and Title Insura Seller shall convey title to the Real.
Property to Buyer by a grant deed in the form of Exhibit "23" attached hereto (the "Grant
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1173306.3
Deed "), At the "Close of Escrow," Fidelity National Title (the "Title Company "), shall issue
througli Escrow an Owner's Policy of Title Insurance, (die "Title Policy ") with CLTA coverage,
unless Buyer elects ALTA coverage and pays the additional cost of such coverage pt.rrsuant to
Paragraph 2, 4.2 below, in which event the Title Company shall issue the "Title Policy «, ALTA
coverage, With liability in the amount of the Purchase Price, insuring fee tulle to the Real
Property vested in Buyer, subject only to the following exceptions (the "Permitted Exceptions "):
Policy;
delinquent or payable over time;
(i) the standard printed exceptions set forth in the Title
(ii) general and special taxes and assessments not then
(iii) those eertain exceptions which have been approved
by Buyer as provided in Paragraph 2.94 below; and
Buyer,
2A Costs
(iv) any exceptions to title created by or made through
2.4.1 Escrow Holder's fees with respect to the Escrow shall be
shared equally by Seller and Buyer,
2,1,2 Seller shall pay the premium for a CLTA Standard Policy
of Title Insurance. The additional cost for an ALTA Owner's Policy, if selected by Buyer, and
any endorsements to the Titic Policy requested by Buyer shall be paid f'or by Buyer. Buyer shall
pay all costs and expenses, if any, incurred In Connection with its obtaining a survey of the
Property.
2,13 All expenses and charges incurred in connection with the
discharge of delinquent taxes, .if any, or monetary liens or monetary encumbrances on the
Property, other than (a) those created by or made ttvough Buyer, (b) bonds, taxes and.
assessments payable over time, except to the extent payable by Seller under Pm.agrapl 2.4.4
below, (c) interests granting royalties to third parties, (d) liens arising out of any legal
proceedings encumbering the Property, notwithstanding the fact that such liens could be
discharged by the payment o:l money, and (e) any exception to title that cannot expressly, by its
terms, be discharged by payment of money, shall be paid by Seller.
2.4,4 All installments of bonds, special taxes or assessments
which are a lien on the Property and due and payabfe in full prior to the time of Closing shall be
prorated in the manner set forth in Paragraph 2,81 below; provided, however, that in
determining any amount payable by Seller, such assessments shall be amortized over the longest
period oftinhe permitted by the taxing authority to make such payment, even if the assessment is
assessed as a .lump sum.
2,4.5 Each party shall be responsible for payment of the fees and
expenses of its counsel relating to this Agreement and the transactions contemplated hereby.
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2,11.6 Any county documentary or transfer taxes and recording
fees shall. be paid by Seller, Any city documentary or transfer taxes shall be paid one -half by
Buyer and one-half by Seller.
2. Any other closing costs or charges shall be paid by the
party that customarily pays such costs or charges in the Santa Clara County, California.
2.5 De posit of Documents and Funds by Seller Se11er shall deposit
with Escrow Holder the following items no later I.han two (2) business days prior to the Closing
Date, duly executed and acknorvledged where required;
2,5,1 The Grant Deed,
2.5,2 A completed California. Franchise Tax Board Form 593 -W
and an affidavit certifying that Seller is not a "foreign person" as defined in the Internal Revenue
Code.
2.5.3 All other documents as may reasonably be required by
Escrow Holder or the Title Company to close the Escrow In accordance with this Agreement,
2.6 Deposit of Documents and Funds by .Bu kei;. Buyer shall deposit
with Escrow Holder the following items no .later than two (2) business days prior to the, Closing
Date, duly executed and aclulowledged where required;
2.6,1 The Balance plus such additional I'm (Is as are required to
pay Buyer's costs and prorations as provided in Paragraph 2. above and Paragraph 2.8 below,
less any credits Buyer is entitled to hereunder,
2,6,2 A completed and originally executed Preliminary Change
of Ownership Report in the 'form required by the Santa Clara County Recorder's Office ((he
"Change of Ownership Report "),
2.6.3 A certified copy of resolutions of the governing body of
Buyer adopted at a meeting of such governing body approving this Agreement and the
transactions confen7plated hereunder ( "Buyer's Resolutions "), as soon after such meeting as-the
Buyer's Resolutions are available,
2.6.11 All other funds and documents as may be reasonably
required by Escrow Holder or the Title Company to close the Escrow in accordance with this
Agreement,
23 D elivery of Doc uments uid funds at Closing The performance of
the acts set North in this paragraph shall constitute the "Closing" or the "Close of Escrow" as
such t.errris are used. in this Agreement. The Escrow Holder shill conduct the Closing by
recording and distributing the following described docu -munts arIcl .funds in the following .manner:
2.7.1 Deliver Buyer's Resolutions to Seller.
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2.7,2 Deliver to Seller on the Closing Date immediately available
funds in the suns of the Balance, and such other funds, if any, clue Seller by reason of prorations,
less Seller's closing costs and proration, if any, is provided in Paragraph 2.4 above and
Paragraph 2.8 below, and any credits Buyer is entitled to hereunder,
2.7,3 Pay the costs referred to in Paragraph 2.4 above.
2.7A Record the Grant Decd in the Office of the County
Recorder of Santa Clara County and simultaneously deliver the Change of Ovvnershi,p Report to
such Office,
copy to Seller,
2,7,5 Obtain and deliver the original Title Policy to Buyer and a
2.8 Prorations
2,8,1 Taxes, Escrow Holder shall prorate on a 365 -day basis the
ad valorem taxes on the Real Property for the current fiscal year and all installments of bonds,
special taxes, and assessments payable over time as of the Close of Escrow based upon the most
current real estate tax information available. Buyer acknowledges that Seller is obligated to pay
to the California State Board of Equalization the ad valorem taxes on the Real Property for the
entire tax fiscal year during which the Close of Escrow occurs even though (a) Seller will own
the Property for less than the entire fiscal year, and (b) such paynientt may be due; following the
Close of Escrow. Therefore, Buyer agrees that at the Close of escrow Seller shall be credited
and Buyer shall be debited an amount. equal to that portion of the ad valorem taxes on the
Property attributable to the period froin the Close of Escrow to the end of the tax fiscal year in
which the Close of Escrow occurs. Any bill for supplemental ad valorem taxes ( "Supplemental
Taxes ") on the Real Property which is issued after the Close of Escrow shall be prorated by
Buyer and Seller outside of .Escrow after the Close of Escrow, Each party -,ball remit its pro .rata
share of any such Supplemental Taxes, as reasonably deternlind by Seller and approved by
Buyer, such Buyer's approval not to be unreasonably withheld, to the requesting party outsidd of
)scrow within ten (t 0) days after such party's receipt of a copy of the bill for such Supplemental
Taxes from the requesting party, Notwithmmiding the proration procedure described above,
Buyer shall assume and shall pay all taxes and assessments (including all roll - baste taxes and
assessments) levied or assessed against any portion of the .Real Property as the result of a change
in the use or ownership of the .Real Property occurring from and after the Closing Date, and shall
defend, indeinnf.fy, and bold Seller harmless from any cost, expense, liability, or obligation
(including, NMhout Iimitation., reasonable attorneys' fees and costs) with respect to any such
taxes or assessments. This provision shall survive the Close of Escrow,
2.8,2 Utilities Escrow Holder shall prorate through Escrow, on
a 365 -clay basis, all water, gas, electric and other utility services, if any, on the Property, Any
such item that is not determinable at the Closing shall be adjusted by the parties by cash payment
outside of Escrow when determined,
2,9 Buyer's Conditions to Closing Buyer shall not be obligated to
proceed to the Close of Escrow and the Closing shall not occur unless and until, in addition to all
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other conditions contained in this Agreement, the following conditions have been satisfied or
waived in writing by Buyer:
2.9.1 Evaluation of Property On or before the expirati.oii of ilic
period ending thirty (30) days after the Opening of Escrow (the "Feasibility Period "), Buyer, in
Buyer's sole discretion, shall have approved the Property, including, without limitation, the
results of all inspections, tests or studies of the Property conducted by or on behalf of Buyer.
Boyer shall deliver to ,Seller, promptly upon receipt, copies of all written inspection results, tests
and studies of the Property conducted by or on behalf of Buyer; provided, however, that Buyer
shall not be obligated to deliver to Seller proprietary information relating to Buyer's potential use
of the Property, including architectural studies and evaluation, Further, without limiting the
generality of the foregoing, Buyer shall have approved ti►e feasibility of its obtaining such
governmental approvals as may be required for Buyer's proposed use of the Property, including,
without limitation, any changes in zoning (the "Zoning Approvals "). Buyer's failure to notify
Seller or Escrow Holder prior to the expiration of the Feasibility Period of Buyer's disapproval
of the Property or any of Buyer's feasibility studies shall constitute ; IBuyer's election to proceed
to the Close of Bscrow. All inspections, tests and studies conducted by Buyer shall be at Buyer's
sole cost and expense. Prior to the Closing, Seller shall cooperate with Buyer as reasonably
requested by and at the sole expense of Buyer (and to the extent possible) for the purpose of
obtaining all Zoning Approvals and permits required in connection with Buyer's proposed use or
the Property; provided, however, that the effectiveness of any such Zoning Approvals affecting;
the Property shall be expressly conditioned upon the occurrence of the Close of Escrow and shall
not. be binding upon Seller.
19,2 Related D ocument s, Within ten (10) days after the
execution of this Agreement by Buyer and Seller, Seller shall have made available to Buyer
copies of any technical studies or reports in Seller's possession (including a copy of the most
recent survey of the Property (if any) and copies of Building plans (if any)) and which. are
located at the office of(1) Seller's Broker, (2) Ve.rizo.n California ln.e. Building Services
Department, acid (3) Ve.dzon California Inc. Environmental Compliance Department regarding
the environmental, seismic, or geological condition of the Property. Seller (a) has not
independently investigated any iriform.ation included in such studies or report; and (b) has not
inade and does not make any representations or warranty regarding the truth, accuracy or
completeness of the information glade available to Buyer. Seller shall use coiTarierci ally
reasonable efforts to make available the documentation described above to Buyer; provided,
however trial :Buyer acknowledges and agrees tlrat despite Seller's commercially reasonable
efforts to make available to Buyer the docuinentation described herein, documents i
inadvertently not be provided to Buyer, and Buyer shall make its own independent inspection of
the Property in the inanner set forth in Paragraph 5 below, Notwithstanding anything to the
contrary contained in this Paragraph 2,9,2, Seller does not represent or warrant that any such
studies or reports exist or are i.n Seller's possession, and Buyer assumes the entire risk of any
inadvertent failure by Seller to deliver any d.ocumenis to Buyer.
2.9.3 Evaluation ofTitle o ►t. Within ten (10) clays after the
execution of this Agreement by Buyer and Seller, the Title Company shall have delivered to
Buyer a. preliminary title report issued by the Title Company (the "Preliminary Report ") for the
Property (as well as copies of all title documents referred to therein).
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2,9.4 Title Review
(i) Ap»raval Buyer shall not have disapproved the
Preliminary Report within the earlier of (a) fifteen (15) calenda7• days after the receipt Of the
Preliminary Report an(] copies of all documents referenced therein, or (b) the expiration of the
Feasibility Period. Buyer shall provide to Seiler and Escrow Holder written notice of Buyer's
disapproval of any title exception (the "First Notice "). Any title exception not so disapproved
shall be deemed approved, provided that if a supplemental report is issued showing any
exception not shown on the Preliminary Report, Buyer shall have an additional ten (10) calendar
days after receipt of such supplemental report and copies of all documents referred to therein
(.not previously provided to :Buyer) to approve or disapprove any such title exception,
Notwithstanding anything to the contrary contained in the foregoing paragraph, Buyer shall not
be entitled to extend the title review beyond the expiration of the feasibility Period for any
supplemental title report issued in connection with a survey of the Property obtained on behalf of
Buyer. Buyer shall .not be entitled to disapprove liens for current non - delinquent property taxes
or any exception to title created or made through Buyer,
(11) Disata . roval Should Breyer disapprove any matters
of title, then within ten (10) calendar days after Se11er's receipt ol• such. First Notice (the "Second
Notice Period "), Seller shall provide notice to Buyer and Escrow Holder whether Seller is
willing or able, in Seller's sole discretion, to attempt to causo such disapproved iterns to be
eliminated prior to or at Closing (the "Second Notice "); provided, however, that if Seiler does
not provide such Second .Notice, Seller shall be deemed to have elected not to attempt to remove
the disapproved title exceptions. if the Second Notice states that Seller will attempt to cause
such disapproved. title exceptions to be removed from title to the Real Property prior to or at
Closing, then Seller covenants to use commercially reasonable efforts to so remove them, If the
Second Notice states that Seller is unable or unwilling to remove such disapproved title
exceptions (or if Seller fails to send the Second Notice), then within ten (10) calendar days after
(a) receipt of such Second Notice, or (b) expiration of the Second Notice Period if Seller fails to
send the Second Notice Buyer shall provide a notice to Seller and Escrow Holder stating;
whether Buyer will waive, in Buyer's sole discretion, Seller's inability or unwillingness to
remove all the specified disapproved tittle exeeptiions .Front title to the Real Property (the "Third
Notice "); provided, however, Buyer's failure to give such Third Notice shall be deemed to be. a
refusal to waive Buyer's disapproval of the tittle exceptions. If Buye.r's Third Notice specifies
that Buyer waives prior disapprovals except as to those matters Seller has elininated or will
eliminate prior to or at the Closing, the condition contained in this Paragraph 2.9.4 shall be
deemed satisfied, so long; as any disapproved title exceptions which Seller has agreed to
eliminate prior to or at the Closing have been eliminated prior to or at the Closing. If the Third
Notice specifies that Buyer refuses to waive its prior disapprovals (or if the Third Notice is not
provided), this agreement and the Escrow shall terminate in accordance with Paragraph 2.11
herein,
2,9,5 Iss uance of Title P olicy. The Title Company shall have
issued the Title Policy as of the Close of Escrow,
2.9,6 Waiver. The foregoing conditions set forth in
Paragraphs 2.9.1, 2.9.2, 2.9,3, 2.9.4 and 2,9.5 above are for the benerit of Buyer, and may be
\9733636.3
waived by Buyer in writing delivered to Seiler and Escrow Holder, In satisfying the foregoing
conditions, Buyer and Seller shall each exercise good faith, reasonableness and diligence.
However, decisions authorized to be made in the sole discretion of either .Buyer or Seller shall be
final and not subject to review or challenge on any basis,
2.10 Seller's Conditions to Closing Seller shall not be obligated to
proceed to the Close of Escrow and the Closing shall not occur unless and until, in addition to all
other Conditions Contained in this Agreement, the following conditions have been satisfied or
waived in writing by Seller:
2,10.1 Perfoz7aian.ce of Dbli 7atio At or . prior to the Closing
Date, Bc►yer shall have perforrned all of Buyer's obligations herein that are to be performed prior
to the Closing,
2.10,2 Waiver It. is hei understood that t'he condition set forth
in Paragraphs 2.10,1 above is for the benefit of Seller and may be waived by Seller in writing
delivered to Buyer and Escrow Holder. In satisfying the conditions in this Paragraph 110, Seller
and Buyer shall each exercise good faith, reasonableness, and diligence. However, decisions
authorized to be made in the .sole discretion of either Buyer or Seller shall be final and not
subject to review or challenge on any basis.
2.11 Termination, Upon any termination of this Agreement and the
Escrow (if applicable) for any reason, other than either party's default hereunder, (i) each party
shall execute such documents as B.scra%�- Holder may reasonably require to evidence such
termination, (ii) Escrow Holder shall charge its Tees and expenses to both parties equally,
(iii) sub to the provisions of paragraph (ii) above, Escrow Holder shall return all documents
and funds to the party who deposited them, (iv) Buyer shall return to Sutler all documents
delivered to it by Seller relating to the property, (v) Buyer shall deliver to Seller all Documents
Relating to the Property, as def:incd in'Paragraph I I below, (vi) Seiler shall return to'Buyer any
portion of the Deposit previously delivered to Seller, and (vii) all obligations of either party
relating to this Agreement and the Property shall 'terminate,
3. Scl1er's 1Zepresentati.ons an ck Warranties, Sellerlrcreby z °cpresents and
warrants to Buyer that, unless otherwise provided, at the date of execution hereof and at and as
of the Closing Date:
3.1 Corporate Existence and Authorit Seller is a corporation
(i) validly existing aid in good sanding under the laws of the State of California; and (ti) duty
authorized, qualified and licensed under any and all laws, ordinances, rules, regulations and
requirements of all governn-re.nta.l autliorities to do all things required of it under or in connection
with this Agreement, This Agreement and all agreements, instruments and documents herein
provided to be executed or to be caused to be executed by Seller are dirty executed by and
binding apo.n Seller. Each. individual executing this Agrecrn.ent on behalf of Seller represents
and warrants that he or she is duly authorized to execute and deliver this Agreement on Seller's
behalf.
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3.2 Non- Foreign Person Seller is not a "foreign person" within the
meaning of Internal Revenue Code § 1445.
4. Buyer's Pepresentatio.ns pii Warranties Buyer hereby represents and
warrants to Seller that at the elate of execution hereof and at and as of the Closing Date, Buyer is
a municipal corporation (i) validly existing and in good standing under the laws of the state of.its
incorporation and the State of California; and (.ii) duly authorized, qualified and licensed under
any and all laws, ordinances, roles, regulations and requirements of all governmental authorities
to do all things required of it under or in connection with this Agreement, This Agreement and
all agreements, instruments and documents herein provided to be executed or to be caused to be
executed by Buyer are duly executed and binding on Buyer. Each individual executing this
Agreement on behalf of Buyer represents and warrants that lie or she is duly authorized to
execute and deliver this Agreement on Buyer's behalf.
S. Bu yer's Examination o f the Pro LeLty. Except as provided in Paragraph 3
of this Agreement, Seller makes no representation or warranty respecting the Property, or airy
portion thereof, or otherwise in connection with the transaction contemplated hereby. Without
limiting the gQneral.ity of the J.brego.ing, Buyer hereby acknowledges and agrees that Buyer will
be purchasing the Property "AS IS" with all faults, without representation, warranty or guarantee
of any kind, either express or implied, including, without limitation,, any warranty of condition
merchantability, habitability or fitness for a particular use or purpose or the value, accuracy of
information, marketability, prospects for future development, use or occupancy, except 'cis
provided in Paragraph 3 above, and more specifically that:
(i) Prior to the Close of Escrow, Buyer will have made
its own independent investigation of the Property and all other aspects of this transaction,
including, without linfltation, the financial value of the Property and projected future income and
experrses for the Property, and has relied entirely thereon and on the advice of its independent
consultants (if any) in entering into this Agreement, and not on any information or material
supplied by or on behall• of Seller.
(ii) Prior to the Close of Escrow, Buyer will have
reviewed all instruirients, records and documents which Buyer deemed appropriate or advisable
to review in conrrectiotn with the Property and this transaction, and Buyer will have determined
iliat.the iin:fo.r.rnation and data contained tltereiin. or evidetwed thereby was satisfactory to Buyer,
(iii) Seller makes no representation or warranty with
respect to the zoning or permitted use of any portion of the Property.
(iv) Prior to the Close of Ese -row, Buyer will be fully
satisfied that the Purchase Price is fair and adequate consideration for the Property.
(v) Subjeot to the conditions, covenants, representations
an notwithstanding warranties of the parties set forth herein, any adverse effect on the
marketability, desirability or value of I.he. Property or any portion thereof which occurs between
the execution of this Agreement and the Closing Date, including, w.ilh.out limitation, any adverse
effect arising from or related to any changes or proposed changes to any governmental laws,
W733036-3
Well
ordinances, statutes, rules or regulations, the transactions contemplated by this Agreement shall
be consummated on the terms and conditions contained .herein.
(vi) Buyer acknowledges receipt of that certain Property
Risk Natural Lazard Disclosure Report prepared by JCP- LGS Property Disclosure Reports,
dated June 9, 2009,
6. Hazardous Material.
6.l Defnitic n.qf Hazardous Material As used herein, the term
"Hazardous Material" means any hazardous or toxic substance, material, or waste which is or
becomes regulated by any local governmental authority, the State of California or the United
States Government, The terra "Hazardous Material" includes, without limitation, any material or
substance which is (1) defined as "hazardous waste," "extremely hazardous waste," or "restricted
hazardous waste" under Sections 25115, 2511.7 or 25122.7, or listed pursuant to Section 25140,
ofthe California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control
Law), (ii) defined as a "hazardous substance" u.n.der Section 25316 of the California 1- lealth and
Safety Code, Division 20, Chapter 6.8 (Carpenter- Presley - 'Canner hazardous :Substance Account
Act), (iii) defined as a "hazardous material," "hazardous substance," or "hazardous waste" under
Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous
Materials Release Response Plans and Inventory), (iv) defined as a "hazardous substance" under
Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) listed under Article 9 or
defined as "hazardous" or "extremely hazardous" pursuant to .Article 4 of Tittle 22 of the
Ca.11lornla Administrative Code, Division 4.5, Chapter 11, (viii) defined as a "hazardous waste,"
`Iliazardous substance" or similar term under the Federal Water Pollution Control Act (33 U.S.C.
§1317), (ix) defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. 56901 et seq. (42 U,S.C. §6903), (x) defined as a
"hazardous Substance" pursuant to Section 101 of the Comprehensive Erivironmental Response,
Compensation and Livability Act, 42 U.S.C. §9601 et seq. (42 U.S,C. 59601), or (xi) which
.requires investigation or remediation under any federal, state or local statute, regulation,
ordinance, order, action, policy or common law.
6,2 Presence of Hazardous Material Buyer acknowledges that (i) the
Building contains certain asbestos containing material (the "Identified ACM") as identified in
that certain Comprehensive Asbestos Survey Report dated March 16, 2009 prepared by
Hyglerletics Environmental, (ii) Seller will not remove the Identified ACM, (iii) the Building
may contain other asbestos and lead paint which will not be. removed by Seller, (iv) the Property
may or may not contain certain other I Materials, (v) Seller has provided :Buyer with a
copy ofthat certain Phase I Envirormiental Site Assessment dated April 13, 2009 and prepared
by ATC Associates Inc. (the "Phase P), and (vi) Seller makes no representation or warrainty to
Buyer regarding the presence or absence of any Bazardous Materials on or under the Property, 11
shall be Buyer's responsibility under this Paragraph 6 to examine the Property and to review
such reports or other docul runts it. deems Necessary to satisfy itself as to the presence or absence
of any such Hazardous Materials. Without linniting the generality of the foregoing, Buyer further
acknowledges and agrees that (a) Seller is currently operating the "Lift" (as defined in Paragraph
18 below) at the Property, (b) the disposition or removal of the Lift shall be governed by the
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%9733636.7
terms of Paragraph 18 below, and (c) the Phase I was provided to Buyer as an accommodation
and for informational purposes only. Accordingly, the Phase I cannot be relied upon by Buyer
and Seller makes 11U representation or vJarranty to buyer regarding the truth, accuracy or
completeness of th.e in:for.mation contained therein.
6.3 lZi ht to Ins ject, Prior to the- expiration of the Feasibility Period,
Buyer shall have the right, at its cost and expense, to conduct such physical inspections of the
Property as necessary in order to determine the presence or absence of Hazardous Material on or
Wunder the Property, Such inspections by Buyer shall not interfere with the ongoing operations at
the Property, shall be conducted at reasonable times and udder reasonable eircunnstances and
shall be subject to the prior approval of Seller and Seller's right to monitor the inspection
activities. Buyer shall promptly deliver the results of such inspections to Seller, Buyer
acknowledges and agrees that any soil samples taken from the Property on Buyer's behalrsha.11
be taken via the spli.t sample method and Buyer or Buyer's consultant shall immediately provide
Seller with a portion of t11e sampled soil for Seller's independent analysis, which indepcnd.e.nt
analysis, if undertaken, shall be undertaken at Seller's sole cost.
6A Cleanup of Hazardous Material If, prior to the expiration of the
Feasibility Period, either Seller orBuyor determines that a legally unacceptable level, according
to applicable governmental standards, of Hazardous Material exists on or under the Property,
then :Buyer may, in Buyer's sole discretion, terminate this Agreement. In such case, Buyer shall
bear its oNvii inspection costs, and the provisions of Paragraph 2.11 shall apply. If Buyer elects
not to so terminate this Agreement, then Seller may, in Seller's sole discretion, either
(l) tern this Agreement, in which event the provisions of Paragraph ?,1 1 shall apply, or
(2) commence to ren)ove such Hazardous Material from the Property in which event the Close ol'
Escrow shall be delayed until following Seller's completion of such removal. If Seller
commences to remove such Hazardous Material, Seller shall thereafter diligently proceed with
such removal at Seller's sole cost and expense, and .in accordance with all applicable laws, rates,
and regulations.
6,5 13 er's .ins section. if Seller elects to remove such Hazardous
Material pursuant. to Paragraph 6A above, upon completion of such removal, Seller shall deliver
to Buyer and to Escrow holder notice stating that such removal has been completed. Within
thirty (30) days following Buyers receipt of such notice, Buyer shall inspect the Property in
order to determine the presence or absence of Fazardous Material on or under the Property.
provided, however, that Seller shall have the right to reasonably approve Buyer's agent who is to
conduct such inspection. If such inspection reveals that the level of Hazardous Material
remaining on or under the Property is at or less than the allowable level under applicable
governmental rules or regulations, then Buyer shall be obligated to proceed to the Close of
Escrow, and the Close of Escrow shall occur upon the first to occur of (1) the Closing bate, it'
such removal of lI.azardous Material is completed at such time, or (2) within two (2) weeks
following Buyer's inspection.
6.6 Indemnification If the parties proceed to the Close of Fscrow,
Buyer shall indemnify, defend and hold Seller harmless from any and all claims, demands
( including demands by any governmental agency), .habil..i.ti.es, costs, expenses, penalties,
darnla losses and liens, including without lirnl..itation reasonable attorneys' fees, arising out of
or with respect to (1) hazardous Material on or under the Property, or migrating to or from the
Property at the Close of Escrow or released on or under the Property subsequent thereto, and
(2) any clean -up of any and all Hazardous Material which might remain or subsequently be
placed on or under the Property, The indemnity . provided for herein shall survive the Close of
Escrow hereunder and shall not be merged into the Grant Iced.
6.7 Release If the parties proceed to the Close of Escrow, then;
6.7.1 Buyer and its employees, contractors, agents, and each of
them, and its successors, assigns, heirs, devisees and executors, agree to forever release,
discharge and acquit Seller and its parent, subsidiary and /or affiliate corporations, partnerships
(general and limited), partners, directors, officers, shareholders, and employees, and each of
them (collectively, "Releasees "), of and from any and all claims, demands obligations,
liabilities, indebtedness, breaches of duty of any relationship, acts, onl.lssions, misfeasance,
malfeasance, cause or causes of action, costs, sums of money, accounts, compe.nsati.on.s,
contracts, controversies, promises, damages, costs, losses and expenses, of every type, kind,
nature, description or character (including without limitation reasonable a(torneys' fees)
(collectively "Claims "), and irrespective of how, why or by reason of what facts, whether
heretofore or now existing, or which could,' might or may be claimed to exist in the .l:uturc,
whether known or unknown, suspected or unsuspected, liquidated or unliquidated, each as if
fully set forth herein at length, which in any way arise out of, or are connected with or relate to
(1) any Hazardous Material on or under the Property, or migrating to or :from the Property, at (lie
Close of Escrow or released on or under the Property subsequent thereto, and (2) any required
cleanup of any and all Hazardous Material which inig.ht remain or subsequently be placed on or
under the Property, including without limitation any personal injuries suffered by any person or
persons. The relense provided for herein shall survive the Close of Eserow hereunder and shall
not be merged into the Grant Deed,
63.2 Buyer and its successors, assigns, heirs, devisees and
executors, agrees, represents and warrants that the matters released in Paragraph 6,7.1 hereof are
not limited to matters which are known or disclosed, and hereby waives any and all rights and
benefits which it now has, or in the future may have, conferred upon it by virtue of the provisions
of Section 1542 of the Civil Code of.'the State of Cali:l'ornia which provides as follows;
"A G-ENI:1RAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICII THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN ITIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELBA.S} , WITICH IF KNOWN BY IJIM
OR HER MUST HAVE MATERIALLY AFFECTED HI,S OR
HER SETTLEMENT WITH THE DEBTOR."
Buyer's Initials
Buyer also further expressly waives and relinquishes all statutes, rights, remedies and benefits of
all other jurisdictions, state and federal, which are all of the same or similar import or effect as
Section 1542 of the California Civil Cade.
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~9733636.3
Buyer's Initials
In connection with the release contained in Paragraph 6;7,1, Buyer agrees,
represents and warrants that it realizes and acknowledges that factual matters now unknown to it
may have given. or may hereafter give rise to Claims which are presently unknown, Lin anti cipated
and unsuspected, and further agrees, represents and warrants that the release contained in
Paragraph 6.7,1 has been negotiated and agreed upon in light of that realization and that it
nevertheless hereby intends to release, discharge and acquit. Seller and 'Releasees from any such
unknown Claims to the extent provided herein.
6.73 Buyer hereby agrees, represents and warrants that it has had
advice of counsel of its own choosing in negotiations For and the preparation of this Agreement
( including, without limitation., Paragraphs 6.7.1 and 63,2 herein), that it has read Paragraph 6,7.1
hereof and Paragraph 6.7.2, that it has had such Paragraphs fully explained by such counsel, and
that it is fully aware of their contents and legal effect.
6.7,1 Buyer acknowledges and agrees that no employee, agent,
legal counsel, or other representative of Seller, including Selter',s Broker (as defined below) has
been authorized to make, and in executing this Agreement Buyer.has not retied upon, any
statenxent of Seller, Setler's employees, agents, Sellcr's Broker, or legal counsel, and should
Buyer be mistaken in its belief with regard to some issue of fact or law regarding the matters
herein released, it specifically agrees to assume; the risk of such mistake, if any exists. Buyer
hereby acknowledges that Buyer is capable of performing or causing to be performed a thorough
and independent investigation, analysis and evaluation of. the Property and all other aspects of
the tralxSaetion contemplated by this Agreement, and that it has had an opportunity to Snake, and
to have its experts make its and their investigation regarding the matters herein released and all
laws, rules and regulations related thereto,
7. Remova of Pers onal Property. Prior to the Close of Lscrow, Seller shall
remove from the Property any items of personal property owned by Seller, Such removal shall
not affect the anxount of the Purchase Price or any other terms or conditions of this Agreement.
E7xtry
8,1 Right of Entr Buyer and its representatives, employees,
contractors, agents and designees shall have the right to enter upon the Property, at Buyer's sole
cost and expense, in order to inspect and investigate the Property and to conduct any and all
surveys, tests and studies Buyer cledms necessary or convenient, provided that Buyer shall
immediately restore any damage done to the Property as the result of any such tests, surveys or
studies, Prior to any entry upon the Property, Buyer shall designate in writing to Seller one or
more representatives of Buyer who shall accompany any of such ,persons each time they enter the
Property. Such entry or review shall be made only after reasonable advance written notice to
Seller by .Buyer (in no even.t..less than 24 hours advance notice) and at times reasonably
acceptable to Seller. Buyer shall indemnify and defend Seller against and hold Seller and the
Property free and harmless from any and all claims, demands, liabilities, costs, expenses,
penalties, damages, losses and liens, including without limitation, reasonable attorneys' fees,
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\973,636.3
arising out of any such entry by .Buyer or its representatives, employees, agents, contractors or
designees, The indemnity provided for herein shall survive the termination of this Agreement or
khe Close of Escrow hereunder and shall not be merged into the Grant Deed. The inspections of
tine Property shall be subject to the terms of this Paragraph 8 and shall be considered entries upon
th.e Property for the purposes of this Paragraph 8,
8,2 Insurance Commencing with Buyer's execution of this
Agreement and at all times prior to the Close of Escrow, Buyer shall have in c05ect worker's
compensation and employer's liability insurance with statutory limits of coverage as required by
law, and. with a limit of liability of at .least $2,000,000/$4, 000,000 each occurrence /aggregate,
and connnnercial general liability insurance naming Seller as an additional insured, with limits of
not less than $2,000,000 each occurrence, with $4,000,000 aggregate for bodily injury, including
death resulting therefronn, and broad form property damage, including eollapse and underground
property damage, and \vai.ver of subrogation: These requirements may also be satisfied with
coverage provided through a municipal self - insurance pool. Prior to entering the Property,
Buyer shall deliver to Sutler certificates of insurance evidencing such coverage and further
evidencing that such coverage may only be terminated or modified upon thirty (30) day's prior
wr.ittern notice to Seller. These covenants in this Paragraph 8 shall survive the Close of Escrow
and shall not be merged into the Grant Deed,
9, Condemnation; Damage and Iestruction
9.1 Con demnation , This Agreement is subject to the provisions of
California Civil Code Sections 1662 (the "Statute" ). For the purposes of the Statute, a taking by
eminent domain of a portion of the Property shall be deemed to affect a "material part'' i F the
taking exceeds ten percent. (10 %) of the gross land area of the land. It is hereby understood that
in the event of a taking of a "material part" of the Property, then Buyer shall not be obligated to
proceed to the Close of Escrow hereunder. In the event ol'such a condemnation of less than a
"material part," Buyer and Seller shall, nonetheless, proceed. to Closing without reduction or
abateniont of the Purchase Price, but Seller shall assign. to Buyer all of Seller's right to recover
horn the condemning authority at the Close of Escrow. Seller agrees that it will, both before and
after the Closing Date, execute su6h documents or instruments and further assurances as Buyer
may reasonably request in order to facilitate such recovery by Buyer and Seller will cooperate in
any marucr reasonably requested by Brayer, Any such assignment shall be without
representation or warranty by Seller.
9.2 Damage and Destructio For the purposes ofthe Statute, damage
or destruction to the Property shall be deemed to affeet a "material part" if the cost to repair such
damage (as reasonably determined by Seller) exceeds $465,000. In the event of such damage
affecting less than a material part of tine Property, Buyer and Seller shall, nonetheless proceed to
Closing without abatement of the Purchase Price, but Seller shall assign to Buyer proceeds from
any casualty insurance received by Seller on account of any such darnnage which has not been
remedied or repaired by Seller prior to the Closing; Date. Seller agrees that it will both before
and after the Closing Date execute such documents or instrurnents and further assurances as
Buyer may reasonably request in order to facilitatc such recovery by Buyer and Seller will
cooperate in any mariner reasonably requested by Buyer. Any such assignment shall be without
representation or warrinty by Seller.
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\9733G3G.3
10, Delivery of Po ssession . Subject to the rights of all tenants on the
Property, if any, Seller shall deliver possession of the, Property to Buyer at the Close of Escrow,
11, Delivery of Docuixrcuts Rc latin to the Pro pc�, Within ten (10) clays
after [be termination of this Agreement and the Escrow (if applicable) for whatever reason except
for a default by Seller, Buyer shall deliver to Seller, without warranty and to the extent
assignable by Buyer, at no cost to Seller, (a) all technical data prepared or obtained by Buyer, its
agents or contractors in connection with the Property, including, but not lin to, land plans,
maps, engineering studies, soils studies, geological studies and other engineering information in
Buyer's possession or under Buyer's control, (b) all written documentation prepared or obtained
by Buyer or filed with the applicable governmental authority in connection with the Zoning
Approvals, including; without limitation, applications, plans and specifications and environrrienta.l
reports, and (c) all other written information relating to the Property in any manner whatsoever
that is in Buyer's possession or under Buyer's control, including without liiitation, appraisals,
drawings and sketches, memoranda, construction documents, reports, studies and other technical
or business Inf01'177Eition ((a), (b), and (c) are collectively referred to herein as, "Documents
Relating to the Property "), Notwithstanding the foregoing, .Documents Relating to the Property
shall not include Buyer's proprietary information relating to Buyer's potential use of the Property,
including architectural studies and evaluations, All Documents Relating to the Property shall be
the property of Seller; provided, however, that Buyer hereby confirms to Seller that all
Documents Relating to the Property prepared by Buyer's independent consultants are assignable
to Seller. Buyer shall keep and shall require its agents to keep all such information confidential
both prior to and after any termination of this Agreement, Notwithstanding anything to the
contrary contained in this Agreement, if this Agreement is terminated in accordance with
Paragraph 2.11 above and Seller is riot in default of this Agreement, Seller shall not be required
to deliver any portion of the Deposit previously delivered to Seller or any other funds to which
Buyer is entitled kind Escrow .Holder . is irrevocably authorized and instructed not to deliver the
Deposit or any other funds to which Buyer is entitled until Buyer has complied - with the
obligations set forth in this Paragraph 11,
12, Commissions :Buyer and Seller represent and warrant to one another that
no broker, salesman or finder has been engaged by them in connection with the transactions
contemplated by this Agreement other than CB Richard Ellis, Inc, representing Seller ( "Seller's
Broker "). Seller shall pay Seller's Broker lhrough Escrow a cotmnission upon the Close of
Escrow pursuant to a separate a.greernent. between Seller and Seller's Broker, In the event of a
0-aim :for brokers' or finders' fees or commissions in connection with the negotiation or
execution of this Agreement or the transactions cont.einplated hereby, Seller shall indemnify,
}sold harmless and defend Buyer from and against such claim if .it shall be based upon any
statement, representation, or agreement alleged to have been made by Seller (including any claim
asserted by Seller's Broker), and Buyer shall Indemnify, hold h.ai7nless and defend Seller if sitch
claim shill be based upon any statement, representation, or agreement alleged to have been made
by Buyer (c eluding any claim asserted by Seller's Broker).
13, I.IQUIDATl D DAMAGi3S
13.1 BUYER'S DEFAULT NOTWITHSTANDING ANY 0 "1`1`113R
PROVISION IIERIv'IN CONTAINED, IF THE SALE OF TAE E PROPF?R`1'Y fS NOT
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'9733636,3
CONSUMMATED BY REASON OF ANY DEFAULT BY BUYER, 'THEN SELLER. SHALL
BE ENTITLED TO LIQUIDATED DAMAGES FROM BUYER IN THE AMOUNT OF THE
DEPOSIT ($100,000). BUYER AND SELLER HEREBY ACKNOWLEDGE, THAT
SELLER'S DAMAGES WHICH WOULD RESULT FROM BUYER'S FAILURE 'f TO
ACQUIRE THE PROPERTY FOR ANY REASON ARE IMPRACTICABLE, AND
EXTREMELY DIFFICULT TO ASCERTAIN, AND THE AMOUNT OF THE DEPOSIT IS A
REASONABLE ESTIMATE OF SUCH DAMAGES. TIDE PAYMENT OF SUCH AMOUNT
AS LIQUIDATED DAMAGES FOR THE BREACH OF BUYER'S OBLIGATION TO
PURCHASE THE PROPERTY UNDER THIS AGREEMENT IS NOT INTF..NDED AS A
FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE
SECTTONS 3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQIJIDATI;D
DAMAGES TO SELLER PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671,
1676 AND 1677. THE PARTIES I-IAVE SET FORTH THEIR INITIALS BELOW TO
INDICATE THEIR AGREEMENT WIT14 THE LIQUIDATED DAMAGES PROVISION
CONTAINED IN THIS PARAGRAPH. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, THE PROVISIONS OF THIS PARAGRAPH ARE NOT
INTENDED AND ,SHALT. NOT BE CONSTRUED TO LIMIT OR NEGATE BUYER'S
INDEMNIFICATION OBI.,IGATIONS AS SET FORTH ELSEWHERE IN T141S
AGREEMENT,� r
TSe� er's T��itia Buyer's Initials
13.2 SELLER'S DEFAULT NOTWITHSTANDING ANY O'T'HER
PROVISION HEREIN CON'T'AINED IF THE SALE OF THE PROPERTY IS NOT
CONSUMMATED BY REASON OF ANY DEFAULT BY SELLER, THEN BUYER SMALL
BE EN'T'I'T'LED, AS ITS SOLE AND .EXCLUSIVE REMEDY, WHETI-IER AT I..AW OR IN
EQUITY, EIT (A) TO TERMINATE'THIS AGREEMENT AND RECOVER ITS
DEPOSIT AND I`T'S ACTUAL, REASONABLE, OUT --OF- POCKET EXPENSES INCURRED
IN CONDLTCTTNG ITS DUE DILIGENCE IM STIGATION OF THE PROPERTY IN AN
AMOUNT NOT TO EXCEED FIFTY THOUSAND DOLLARS ($50,000) (THE ".DUE
DILIGENCE REIMBURSEMENT"), OR (B) IN LIEU OF TERMINATING THE
AGRI' ;EMEN'T AND RECOVERING ITS : DEPPOSIT AND THE DUE DILIGENCE
REIMBURSEMENT, BUYER SHALL BE ENTITLED TO PURSUE SPECIFIC
PERIiOR:UTANCE OF THIS AGREEMEN "I' WITHOUT RIGHT TO ANY DAMAGES
(OTHER THAN A RETURN OF THE DEPOSIT AND THE DUE DILIGENCE
REIMBURSEMENT IF SPECIFIC PERFORMANCE IS NOT GRANTED) OR O'T'HER
EQUITABI_,E RELIT. F WHATSOEVER, BUT ONLY IF BUYER FILES SUCH SPECIFIC
PERFOR vIANCE ACTION THIRTY (30) DAYS AFTER T14E SCHEDULED CLOSING
DATE, AND BUYER'S FAILURE TO INITIATE SUCH ACTION WITHIN SUCH
THIRTY (30) DAY PERIOD CONSTITUTES AN ABSOLUTE BAR FROM BUYER'S
INSTITUTION OF ANY SUCH PROCEEDINGS. BUYER ST-TALL NOT BE ENTI`I'LF.,D TO
RECORD A LIEN OR LIS PEND.ENS AGAINST THE PROPERTY OT.HER'THAN .INN
CONNECTION AND CONCURRENTLY WITH THE FILING OF SUCH SPI,C:IFIC
PIERFORMANCE ACTION,
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W733636.3
Jet
` Buyer's Initials
Seller's Initial's'
14, Attorne rs Fees If any action or proceeding shall be brought by either
party in order to enforce the provisions of this Agreement, or to collect damages as a result of the
breach of any of the provisions of this Agreement, whether or not such action or proceeding is
Ixufsued to a judgment, the . prevailing party shall be entitled to recover all reasonable attorneys'
fees incurred. in connection therewith, including costs,
15, Notices Whenever Escrow Holder or any party hereto shall desire to
deliver to the other any notice, demand, request or other communication, each such notice,
dcnnand, request or other conununication shall be in writing, shall be given by personal delivery,
by registered or certified United States mail, return :receipt requested, or by overnight courier,
postage prepaid, or by facsimile, addressed as follows:
TO SELLER: V1LRIZ.,ON CALIFORNIA INC.
c/o Verizon Corporate Real Estate
15505 Sand Canyon Avenue
Irvine, CA 92618
Attention: Tony Wallace
VSO Real Estate
Fax No. 949-286 -7410
WITH COPIES TO: McGtiircWoods LLP
1800 Century Park East, 8 ,h Floor
Taos Angeles, CA 90067
Attention: Joan A. Wolff, Esq,
Fax No, 310 -315 -8210
CB Richard Ellis, Inc.
c/o Verizon Corporate Real Estate
112 S, Lakeview Canyon Rd, (CA501CW)
Thousand Oaks, CA 91362
Attention; Karalyn S, Luce!
Fax No, 805 -379 -1454
TO BUYER: Town of Los Gatos
110 E. Main Street
P.O. Box 949
Los Gatos, CA 95031.
Attention: Orry P. Korb, Esq,,
Town Attorney
Fax No. 408 -354 -8431
TO 28 CROW 14OLDER; Fidelity National Title
801 S. Figueroa Street, Suite 870
Los Angeles, CA 90017
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,973 M6.3
Attention; Linda Kane, Escrow Officer
Fax No, 213 - 6899330
Any such .notice, demand, request or other communication shall be deemed effective on the day
of actual delivery or refusal to accept as shown by the addressee's rettu•n receipt or fax
confirmation, If the date on which any notice required to be delivered hereunder falls on a
weekend or legal holiday, then such notice may be delivered oil the next business day
immediately following such weekend or holiday, If the date of Closing, or any other date, such
as tile expiration of the Feasibility Period fall on a weekend or legal holiday, then such date shall
automatically be extended to the next business day immediately following such weekend or
holiday, The foregoing addresses may be changed by notice given in accordance with this
Paragraph 15.
16. Ainendmc Com fete A�r eemont . All amendments and supplements to
this Agreement iliust be in writing and executed by Buyer and Seller, All understandings and
agreements between the parties (including any printed offer of sale provided by Seller to Buyer)
regarding the Property are merged in this Agreement, which alone fully and completely
expresses the agreement of the parties regarding the Property, This Agreement has been enterecl
into aller full investigation of the facts by both parties and neither party has relied on any
statement or representation not embodied in this document. This /agreement has been drafted
through a joint effort of the parties and their counsel and therefore shall not be construed against
either of the parties as the draftsperson.
17, Governinjnw This Agreement shall be governed under the laws of the
State of California, Venue for any legal action concerning this Agreement shall be in the Santa
Clara Superior Court,
18. fly lrZ Vehic lele Lift. Buyer acknowledges that Seller currently operates
one (1) in- ground hydraulic vehicle lift (the "Lift ") al the Property, On or before the expiration
of the feasibility Period, Seller shall commence (a) the removal ofthe Lift :from the Property,
(b) the remediation of hazardous Material contamination, if any, located on or under the
Property which remediation is required in connection with such removal of the 'Lift, if any,
(including„ without limitation, the rei.nediation of Hazardous Material contamination (to the
extent regrtfred by applicable law), if any, released or discharged from the Lift), in each case in
accordance with, and to the extent required by applicable law, (c) the restoration of the areas of
the Property affected by such removal to a condition reasonably equivalent to the condition of
the Property prior to such removal, and (d) the obtaining, if reinediation of the Hazardous
Material is required and if otherwise required by applicable law (as mandated by the agency
providing regulatory oversight), of a "no farther action" letter 1rOM tlhe Santa Clara County
Central Biro Protection District (collectively, (a), (b), (c) and (d) shall be referred to as the
"Removal Work "). Commencement of the Removal Work may consist of applying for
applicable permits and approvals to perform the Removal Work, Seller shall diligently prosecute
the. Removal Work, and shall. undertake and eomplute the Removal Work at Seller's sole cost and
expense in accordance with all applicable laws. Upon notification to Buyer from Seller that
Seller has completed the Removal Work, Buyer shall have thirty (30) days to inspect the
Removal Work. (tile "Removal Work Inspection Period "). During) such period, Buyer's
environmental consultant, which consultant shall have been selected by Buyer and approved in
18-
19733636.3
writing by Seller (acting reasonably), shall review and approve the completion of the Removal
Work, which approval shall not be'unreasonably withheld, conditioned or delayed. Buyer's
environmental consultant shall be deemed approved by Seller if Seller does not respond to
Buyer's request for approval within two (2) business days after Buyer's request for approval. In
the event Seller disapproves Buyer's envirorunental consultant, the Removal Work Inspection
Period shall be extended by an additional five (5) business days to enable Buyer to identif=y and
obtain Seller's approval of a different environmental consultant. If Buyer fails to notify Seller
within the Removal Work Inspection Period, the Removal Work shall be deemed approved.
Upon receipt of the approval (or deemed approval) by Buyer's consultant, Seller's obligations
with respect to the Removal Work shall terminate. Upon completion of the Removal Work (and
Buyer's environmental consultant's approval or deemed approval of same), the environmental
indemnity and the enviro.n.niental release contained. in Pai•agr apps 6,6 and 63 above shall apply
with respect to the Removal Work, the Lift and any 1-lazardous Material associated with eithe=r or
both, The parties hereto acknowledge and agree that as long as Seller diligently prosecutes (lie
Removal 1Vork to completion, then Seller shall not be (i) deemed in default of this Agreement, or
(i.i) obligated to pay any charges (other than the cost of performing the Removal Work) in
connection with the Lift, Notwithstanding anything in this Agreement to the contrary (including,
without limitation, Paragraphs 6.4 and 6,5 above), Buyer acknowledges and agrees that (w) the
Removal Work may not be completed prior to the Close of Escrow, (x) the Close of Escrow will
not be delayed for the purpose of f.he completion of the Removal Work, (y) Buyer shall
cooperate with Seller in coivxection with the completion of the Removal Work after the Close of
Escrow, if-applicable, and (z) Seller shall have reasonable access to the portion of the Propca•ty
containing; the Liftt in order to permit .Seller to complete (lie Removal Work after the Closing
Date, if' applicable. Buyer shall also enter into such further agreemeii.ts and grain such further
permissions as reasonably necessary for Seller to complete the Removal Work. The obligations
of the parties provided 'for herein shall survive the Close of Escrow hereunder and shall not be
merged into the Grant Deed,
19. Cou nterparts, Headings a De Terms This Agreement nay be
executed in several counterparts each of• which shall be an original, but all or such counterparts
shall constitute one such Agreement, The headings used herein are for convenience only and are
not to be Construed to be part of this Agreement. For the purposes of this Agreement, (a) the
term "including" means "hicludin; without limitation," and (b) wl'.ien a time period is specified
in this Agreement for the per.fornianoe of an act or the occurrence of an event, "days shall mean
"calendar days," unless otherwise specified herein.
20, No Offer Submission of this Agreement for examination or signature by
Buyer is not effective. as an agreement to sell the Property or otherwise until execution by and
delivery to both Buyer and Seller of an original of this Agreement,
21, Time of the Essence Time is of the essence of this Agree.m.ent.
21 Waiver The waiver by one party of performance of any covenant,
condition or promise shall not invalidate this Agreement, nor shall it be considered to be a
waiver by it of any other covenant, condition or promise. The waiver by either or both parties of
the time for performing any act shall not constitute a wai=ver of the time for performing any other
act or an identical act required to be performed at a later time, Except as specifically provided in
-19-
\9733636.3
Paragraph 13 above, the exercise of any remedy provided in this Agreement shall not be a waiver
of any other remedy provided by law.
23, Third Parti Nothing contained in this Agreement, expressed or implied,
is intended to confer upon any person, other than the parties hereto and their successors and
assigns, any rights or .remedies under or by reason of this Agreement.
24, Severabilit . If any one or rmorc of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforeeability shall not affect any other provision hereof and this
Agreement shall be construed as if such invalid, illegal or unenforceable provision had never
been contained herein, unless such invalidity, illegality or unenforceability materially affects the
transactions contemplated by this Agreement or the ability of either party to perform its
obligations under this Agreement. In such ease, either party may terminate this Agreement and
the Escrow on written notice to the other party given no later than ten (10) business days after the
party giving such notice becomes aware of such invalidity, illegality or uncnforceability, and the
provisions of Paragraph 2.11 above shall apply.
25. ' fax- Deferred Exch__ l , Rach party shall reasonably cooperate N�Tith the
other if such other pally elects to either acquire the Property or convey the Property in
connection with a tax - deferred exchange within the meaning of Section 10131 of the Internal
Revenue Code of 1186, as amended, provided that (a) either party's election 'to effect a tax -
deferred exchange shall not o tiny additional conditions to the Closc of Escrow or extend the
Closing Date; and (b) Seller shall not be obligated in an) event to take or receive title to any
other real property in connection with such exchange, Any such exchange shall be accomplished
by supplemental instructions, exchange doci-Iment.s and an exchange accommodator, if any,
reasonably acceptable to both parties, The party electing to enter into a tax - deferred exchange
shall indemni,lj and hold the other party harmless from and against any and all liens, claims,
damages, liabilities, losses, costs and expenses, including reasonable attorneys' fees, arising out.
of or relating to the cooperating party s participation in the, tax - deferred exchange contemplated
by this Paragraph, The Close of Escrow shall not be conditioned on the closing of any proposed
tax - deferred exchange, and if such proposed tax -de {'erred exchange is not in a position to close
concurrently with the Close of Fserow, Buyer shall nevertheless be obligated to complete the
purchase of the Property from Seller on the Closing Date on the terms and conditions of this
Agreement,
26. Additional D ocuments. Each party hereto agrees to perform any further
acts and to execute. and deliver any further documents which may be reasonably nec.essaq to
carry out the provisions of this Agreement,
27, Assignment; Binding E ffect, This Agreement shall not be assignable by
Buyer to any other party without the prior writfen consent of Seller, which consent Seller may
withhold in its sole discretion, For purposes of this Paragraph, any agreement entered into
between Buyer and a third party prior to the Close of Escrow to sell or otherwise transfer any
.interest in the Property, including, without Iin7il ation, the execution of escrow instructions
contemplating such a sale or transfer shall be deemed an assignment. Any such assignment
without Seller's consent as provided herein, shall be deemed a material breach ofthis
-20-
19733636.3
Agreement, and Seller, nzay, in Seller's sole discretion, elect. to terminate this Agreement, in
which case this Agreement shaft be null and void, Buyer shall have no further rights hereunder,
and Seller shall be entitled to damages as provided in Paragraph 13, Subject to the foregoing,
this Agreement shall be binding upon the heirs, executors, administrators, successors and. assigns
of Seller and Buyer,
28. Waiver of Trial b Jui ,. SELLER AND BUYER KNOWINGLY,
VOLUNTARILY AND ITNITENTIONALLY WAIVE (TO TFTI EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT `l HEY MAY HAVE TO A TRIAL BY JURY 01" ANY
DISPUTE ARISING UNDER OR RELATING TO THIS AGREEMENT, AND THE PARTIES
AGRGL'TF1AT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE SITTING
WITHOUT A JURY.
29, Independent Counsel Each party acknowledges that it has consulters with
and had the opportunity to consult with independent counsel of its own choosing in connection
with the negotiation and execution of this Agreement.
30. Pa triot A ct.
30.1 Seller shall take any actions that may be required to comply
with the terms of the USA Patriot .Act of 2001, as amended, any regulations promulgated under
the foregoing law, 1 Xeeuti.ve Order No. 13221 on Terrorist financing, any sanctions program
adulim. istrated by' the U,S. Department of Treasury's Office of Foreign Asset C:ontrot or Financial
Crirnt;s Enforcement Na work, or any other laivs, regulations, executive orders or goverrnxment
programs designed to combat terrorists or money laundering, or the effect of any of the
foregoing hai.w3, regulations, ordet or programs, if applicable, on the Varmsactions described in
this Agreement. Seller is not an entity .named on the List of Specialty Designated Nationals and
1310cked Persons 111,lintained by the U.S. Department of Treasury, as last updated prior to the date
of this Agreement.
30.2 Buyer shall take any actions that may be required to
comply with the terms of the USA Patriot Act of 2001, as amended, any regulations promulgated
under the foregoing law, Executive Order No. 1 3221 on Terrorist Financing, any sanctions
prograrn administrated by the U.S. Departinent of Treasury's Office of Foreign Asset Control or
Financial Cringes Enforceulment Network, or an'y other laws, regulations, executive orders or
government programs designed to combat terrorism or money laundering, or the effect of any of
the foregoing 1Gtws, regulations, orders or programs, if applicable, on the transactions described
in this Agreement. Buyer is not an entity named. on the List of Specially Designated Nationals
and Blocked Persons maintained by the U.S. Department of Treasury, as last updated prior to the
date of this Agreement,
31. Back Outer Until the Closing, Seller may consider back -up offers for a
portion or all of the Property,
32. Lina: itation o.Liabi Buyer acknowledges and agrees that neither the
sbareholders, officers, employees nor affiliates of Seller shall be liable for obligations entcred
into by or on bchalfo'f' ,Seller. Seller shall not be liable for any indirect, incidental, speculative,
-21-
%9733G3G.3
punitive, special, or consequential. damages of any kind including, but not limited to, loss of
revenue, loss of goodwill, loss of business opporttuiity, loss of profits, losses related to third
party claims or any one or more of them arising in any manner from this Agreement or the
per orrnarnce or nonperfo.rn•r.ance of obligations related thereto regardless of the foreseeability
thereof. Notwithstanding anything to the contrary set .forth in Paragraph 132 above, if prior to
the Closing Date .Buyer becomes aware of any existing or new item, fact or circumstance which
renders a representation or warranty of Seller set forth herein incorrect or untrue in any material
respect (collectively, the "Representation Matter") or that has a. material, adverse impact oil the
value of the Property, then provided such representation or warranty was true when made by
Seller Buyer's sole remedy shall be the right to terminate this Agreement and obtain a refund of
the Deposit by providing written notice thereof to Seller no later than seven (7) business days
after Buyer :learns of such Representation Matter. if Buyer does not timely terminate this
Agreement, then Seller's representations and warranties shall be automatically limited to account
for the Representation Matter, Buyer shall be deemed to have waived Buyer's right to pursue any
remedy for breach of file representation or warranty made untrue on account of such
Representation Matter, and the parties shall proceed to the Close of Escrow, Notwithstanding
a.nythirig to the contrary contained In this Agreement, Buyer hereby agrees that Seller's
maximum. liability under this Agreement for actual, direct damages shall not exceed $50,000 in
the aggregate and that any action or claim asserted by Buyer against Seller mast be filed (if at
all) within. twelve (12) months following the Closing, and ] Buyer hereby waives any right to brine;
a.ny such claim or action thereafter, The _provisions of this Paragraph 32 shall survive the
Closing and shall not rnerge with the Grant Deed,
- ,9733636.3
-22-
IN WITNEISS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written,
S EJ.."LE R:
VEXIZON CALIFO%NIA INC.,
APPROVED AS TO FORM a California corporation
McGUIREWOODS LLP
By:
(date :. L[
Title: cllristopller Ily
Executive Director --• VSO Real Estn te
BUYER:
TOWN OF LOS GATOS, a municipal
corporation
APPROVED AS TO FORK By:_
Title:
By:
Orr, P. Korb, Esq., Town Attorney By:—
Title:
ATTEST:
Clerk Administrator
-23 -
k97336" 303
Receipt of the foregoing instructions by Escrow Holder is acknowledged, said
escrow holding is accepted and Escrow Holder agrees to hold and dispose of the funds and
documents deposited in the escrow in accordance with these instructions,
Dated: ' 20
Fidelity National Title
Linda Kane, .Escrow nff cur
- 24
k973363G.3
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
LIST Or EXHIBITS
13xllibit 1.1 Legal Description of Property
Exhibit 2.1 Escrow Holder's Standard Provisions
Exhibit 2.3 Grant Deed
_25_
\97]3636.3
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
EXHIBU "1.1."
LEGAL DESCRIPTION Or THE : PROPERTY
[to be attached]
.Exhibit 11 - 1
\9733636.3
LEGAL DESCRIPTION
THE LAND REFERREDTO HEREIN BELOW IS SITUATED IN THE UNINCORPORATED AREA, COUNTY OF SANTA
CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
Parcel 1, as shown on that certain map entitled, ?PARCEL MAP MINOR LAND DIVISION LANDS OF VERIZON
CALIFORNIA INC, WI-10 ACQUIRED TITLE AS WESTERN CALIFORNIA TELEPHONE COMPANY, A
CORPORATION, 7260 -OR -714, TOWN OF LOS GATOS, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ?,
which neap was filed in the office of the Recorder of the County of Santa Clara, State of California on May 10,
2007 in Book 813 of Maps at Pages 51 and 52,
PARCEL TWO:
WO:
An easement for Ingress and Egress, installing, repairing, accessing, operating and maintaining drainage,
sewer, water, gas, power and /or other utility conduits, lines or infrastructure, inclusive of telecommunication
lines, over and across that certain portion of Parcel 2 as shown on that certain map entitled, ?PARCEL MAP
MINOR LAND DIVISION LANDS OF VERIZON CALIFORNIA INC. WHO ACQUIRED Tr1 - LE AS WESTERN
CALIFORNIA TELEPHONE COMPANY, A CORPORATION, 7260 -OR -714, TOWN OF I.OS GATOS, COUNTY OF
SANTA CLARA, STATE OF CALIFORNIA ?, which map was filed in the office of the Recorder of the County of
Santa Clara, State of California on May 10, 2007 in Book B13 of Maps at Pages 51 and 52, and designated on
said map as "INGRESS /EGRESS, UTILITY AND DRAINAGE EASEMENT TO BENEFIT PARCEL 1 ", and as further
defined in that certain Deciaration of Easement recorded May 10, 2007 as Instrument No, 19426046, Official
Records.
Said easement is to be appurtenant to, and for the benefit of, Parcel 1 as said Parcel is shown on said Parcel
Map.
PARCEL "THREE:
An easement for Ingress and Egress, installing, repairing, accessing, operating and maintaining drainage,
sewer, water conduits and other utility and irrigation purposes over and across that certain portion of Parcel 2
as shown on that certain map entitled, ?PARCEL MAP MINOR LAND DIVISION LANDS OF VERIZON
CALIFORNIA INC, Wi•10 ACQUIRED TtfLE AS WESTERN CALIFORNIA TELEPHONE COMPANY, A
CORPORATION, 7260. Olt -714, TOWN OF LOS GATOS, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ?,
which map was filed in the office of the Recorder of the County of Santa Clara, State of California on May 10,
2007 in Book 813 of Maps at Pages 51 and 52, and designated In said map as "10'- WIDE WATER EASEMENT
'TO BENCFZf' PARCEL V, and as further defined in that certain Declaration of Easement recorded May 10, 2007
as Instrument No. 19426046, Official Records.
Sold easement is to be appurtenant to, and for the benefit of, Parcel 1 as said Parcel is shown on said Parcel
Map.
APN: 424 -31 -064
AGREEMENT OF PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
EXHIBIT "M"
ESCROW HOL,DLR'S STANDARD PROVISIONS
TO; I+IDEUTY NATIONAL TITLE
1. Time is of the essence of 'thm instructions. If this escrow is not in a
condition to close by the C.IMI.NO DATE as provided for in the foregoing Purchase Agreement .
and written, demand for cancellation is reeei.ved by you from any principal to this escrow after
said date, you shall act. in accordance with Paragraph 7 of these General Provisions. if no
conflicting instruction or demand for cancellation is made, you will proceed to close this escrow
when the principals h ave complied with - the escrow instructions, In the event one or more of the
General Provisions are held to be invalid, those remaining will continue to be operative. Any
amendments of or supplements to any instructions affecting escrow must be in writing. You are
authori:2cd, prior to the close of escrow, to pay from fiinds on deposit any fees necessary to
obtain any demand anti /or report as may be required in this escrow and at the cl.ose of escrow
charge the parties as appropriate, The principals wilt hand you any funds and instruments
required froi:n each respectively to complete, this escrow, Interest on any new financing may
begin to accrue on the date loan funds /proceeds are disbursed by the new lender, and borrower
agrees to pay same in accordance A-vitli lenclei's instructions,
2. You are instructed to deliver and /or record all documents and disburse all
funds AVhen you can comply with these instructions and issue any title insurance policy as called
for herein. 'These instructions, together with any amendments and /or supplements, may be
executed in counterparts and together shall Constitute one and the same document, If these
instructions relate to a sale, and if there is no other written agreement between the parties
pertaining thereto, buyer agrees to buy and seller agrees to sell upon the terms and conditions
hereof. All docunvnxts, balances and statements due the undersigned are to be mailed to the
respective adeh esses shovvn .l�ea'ein, unless otherwise directed. In the event that any party to this
MrOW utilizes facsirni)e transinitted signed documents, all parties hereby agree to accept and
hereby instruct the escrow holder to rely upon such documents as if they bore original signatures.
Buyer and seller further acloiawledge. that any documents to be recorded bearing non original
(facsi.mile) signatures will not. be accepted for recording by the county recorder.
3, The p.hrasc "close of escrow" (or COL) as used in this escrow means the
date on which documents are recorded, unless otherwise specified.
4. Assume a 30 day month in any proration herein provided, and unless
otherwise instructed, you are to use the information contained in the latest available tax
statement, including any supplemental taxes of record, rental. statement as provided by seller and
beneficiary's or association- statements delivered into escrow for proration purposes.
Exhibit 2.1 -1
:9733636.3
5. Upon close of escrow you are instructed to charge our respective accounts
the costs attributable to each, including but. not limited to costs as provided for herein and /or in
accordance with our respective estimated statements attached hereto and made a part hereof.
6. Recordation of any instruments delivered through this escrow, if necessary
or proper for the issuance of the policy of title insurance called for, is authorized. No
examination or insurance as to the amount or payment of personal property taxes is required
unless specifically requested.
7. If demand to cancel i.s submitted after the Closing Date, any principal so
requesting you to calico] this eserow shall file notice of demand to cancel in your office in
NAITiting, You shall within three (3) working days thereafter mail by certified mail one copy of
such notice to each of the other principals at. the address stated in this escrow, Unless written
objection thereto is filed in your office by a principal within - fifteen (15) calendar days after the
date of such trailing, you are instructed to cancel this escrow. If this is a sale escrow, you may
return the lender's papers and /or funds upon lender's demand.
8. Iu the event that this escrow is eanceled, any fees or charges due Fidelity
National Title including cancellation fees and any expenditures incurred or authorized sh.atl be
paid from funds on deposit unless otherwise specifically agreed to or determined by a court of
competent jurisdiction. Upoi.i payment thereof return d.ocun�ents and monies to the parties as set
forth in the (bregoing Purchase Agreerent, or as ordered by the court, and void any executed
instruments.
9. if there is no written activity by a principal to this escrow within any six -
month period after the Closing Date set forth in tho Purchase Agreement, Fidelity. National Title
my, at its option terminate its agency obligation and cancel this escrow, returning all
documents, monies or other items held, to the respective parties entitled thereto, less any fees and
charges as provided herein.
10. If for any reason, fiends are retained or remain in escrow after the closing
date, you may deduct therefrom a reasonable charge, as custodian, of not less than $25.00 per
month, unless otherwise specified.
H. In the event that, you should. receive written eonmeting demands or claims
with respect to this escrow, or with respect to the rights of any o1'the parties hereto, or with
respect to any money or property deposited herein, you shall have the absolute right at your
option to discontinue any or all further acts until such conflict is resolved to your satisfaction,
including by means of filing an Action in interplcader if agreement is not reached within a
reasonable time.
L2. In the event that any Offer to Purchase, Deposit Receipt, or any other form
of Purchase Agreement (collectively, the "Purchase Agreement ") is deposited in this escrow, if
there is a conflict between the terms of these General Provisions and the Purchase Agrcenlent
the terms of the Purchase Agreement shall control,
k97336a6.3
E-xlribit 2.1 r 2
13. The parties hereto, by execution of these instructions acknowledge that
the escrow holder assi1mcs no responsibility or liability whatsoever for the supervision of any act
or the performance of any condition which is a condition subsequent to the closing of this
escroW.
14. In the absence of instructions to the contrary, you are hereby authorized to
utilize wire services, overnight next day, or other expedited delivery services (as opposed to the
regular U.S. Mail) and to charge the respective party's aecount accordingly.
15. Concerning any real property involved in this transaction you are released
from and shall have no liability, obligation or responsibility with respect to (a) withholding of
fiends pursuant to Section 1445 of the Internal Revenue Code of 1986 as arnended, and to
Sections 18662 and 18668 of the California Revenue and Taxation Code, (b) advising the parties
as to the requirements of said Section 1445, (c) determining whether the transferor is a foreign
person or a nonresident Linder such Section, nor (d) obtaining a noel foreign affidavit or other
exemption from withholding under said Sections nor othei making any itrquhy concerning
compliance with such Sections by any party to the transaction,
16, If you pay a demand to pay in full a revolving line of credit or equityline
loan, you are hereby instructed oil nay behalf and for my benefit, to request that the lender
issuing said demand cancel said revolving line or equityline of credit,
17. You are authorized to J'ui'nish to any affiliate of Fidelity National ".Title,
any attorney, broker or lender identified with. this transaction or any one acting on behalf of' such
lender any 11 instructions, amendments, statements, of notices of cancellation given 111
coilnectio.n with this escrow, 11' any Check submitted to escrow is dishonored when presented for
paylll ? J11, YOU 81'e aUthOl - iZed to notify all principals and /or their respective agents ofsuch 11011
paynlenl.
18. All notices, change of instructions, communications and documents are to
be delivered in writing to the office of Fidelity National 'Dille, as set. fbAll herein,
19. All fiends received in this escrow shall be deposited with other escrow
funds in one or more 11011- interest bearing demand accounts of Fidelity National Title in any state
or federal bank or any state or federal savings and loan association C the depository institutions ")
and may be transferred to any other such accounts.
The parties to this escrow acknowledge that while these accounts do not bear interest,
because of these and other banking relatlolnllips with the depository institutions, Fidelity
Na.ti,onal Title and its affiliates may receive from some of the depository institutions tin
array of banking seiwi.ces, accommodations or other benefits, Fidelity National Title and
its affiliates also may elect to enter into other business transactions with or obtain loans
for investment or other purposes from some of the depository institutions. All of such
services, accommodations and other benefits shall accrue, directly or indirectly, to
Fidelity National Title Lint] its affiliates and they shall Have no obligation to account to the
parties to this escrow for the value o.f such services, accommodations or other benefits.
Exhibit 2.1 - 3
14733636.3
All disbursements shall be made by Fidelity National Title check, unless otherwise
instructed,
Fidelity National Title shall not be responsible for any delay in closing if £lands received
by escrow are not available for immediate withdrawal. Fidelity National Title may, at its
option, require concurrent instructions Iroin all principals prior to release of any finds on
deposit in this escroNv.
20. You are authorized to destroy or otherwise dispose of any and all
clocwnents, papers, instructions, correspondence and other material perlaining to this escrow at
the expiration of six (6) years frown the close of escrow or cancellation thereof, without liability
and without further notice.
IMPORTANT NOTICE
Except for wire transfers, funds remitted to this escrow are subject to availability
requirements imposed by Section 12113.1 of the California Instu Code.
CASI-IILR'S, CERTIFIL;D or TELLER'S checks, payable to F'IDl?LITY NATIONAL,
TITLE are generally available for disbursement on the next business day following the
date of deposit.
Other forms of Payment in.ay cause extended delays in the closing of your transaction
pursuant to the requirements imposed by State Law
(Wire transfer information available upon .request)
ALL PARTIES TO THIS ESCROW ACKNOWLEDGETHAT FIDELITY NATIONAL TITLE
DOES NOT PROVIDE LEGAL ADVICE NOR HAS IT MADE ANY INVESTIGATION,
REP RESENTATIONS OR ASSURANCES WHATSOEVER REGARDING THE LEGAL
ASPECTS OR COMPLIANCE Ole THIS TRANSACTION WITI -1 ANY TAX SECURITIES
OR ANY OTHER STATE OR Ft DERAL LAWS. IT TS RECO'NIMENDED THAT THE
PARTIES OB'T'AIN TN.DI PENDENT LEGAL COUNSEL AS TO SUCH MATTERS.
Ex-hibit 2.1 - 4
\4733636._,
THE FOREGOING ESCR01V INSTRUCTIONS AND GENERAL PROVISIONS HAVE
BEEN READ AND ARE UNDERSTOOD AND AGREED TO BY L EACH OP THE
ITNDERSIGNED.
SELLER
VERIZON CALIFORNIA INC.,
a California corporation
By:
Title:
Current Address:
VERI7ON CALIFORNIA INC.
c/o Verizon Corporate; Real Estate
15505 Sand Canyon Avenue
Irvine, CA 92618
Attention: Tony Wallace
VSO Real Estate
\97336363
BUYER
TOWN OF LOS GATOS, a municipal
corporation
By :_
Title:
By:_
Title:
Cur rent Ad dress:
TOWN OF LOS GATOS
110 E. Main. Street
P,O, Box 919
Los Gatos, CA 95031
Attention: Orry R Korb, Esq.,
Town Attorney
Exhibit 2.1 - 5
AGREEMENT NT OF PURCHASE AND SALT
AND ESCROW INSTRUCTIONS
EXHIBIT "23"
GR.ANT DEI�D
RECORDING REQUESTED BY AND
- W IEN RECORDED bIAIL TO A \TD MAIL
TAX B ILLS T'O;
Town of Los Gatos
110 F, Main Street
P.O. Box 949
.Los Gatos, CA 95031
Attention: Jackie Rose
Town Cleric Administrator Space Above For Recorder's Use
GRANT DEED
Title Order No.
APN No.
The undersigncd grantor declares;
Doeumentary Transfer Tax is $
() computed on full value of property conveyed; or
() compuled on full value less value of liens grid
encumbrances .remaining at tin•ie of sale.
() Unincorporated area; () City of _ —
Escrow No.
FOR A VALUABLE CONSTDERATION, receipt of which is hereby adnovvled.ged,
VERIZON CALIFORNIA INC,, a California corporation, formerly known as GTE California
Incorporated ( "Grantor "), hereby GRANTS to TOWN OF LOS GATOS, a municipal
corporation ( "Grantee "), the following described real property in the County of Santa Clara,
State of California;
PER ATTACHED LEGAL DESCRIPTION
Exhibit 23 -1
\97336363
This foregoing grant of real property is subject to non- delingiient taxes, all easements, covenants,
conditions and restrictions, and all other matters of record affecting title to such property.
Dated : - , 200 VRRIGON CALIFORNIA INC,,
a California GOTl7oration
By;
Title;
Ixhihit 2.3 - 2
\9733636.3
ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY Or )
On !, before me, ,
Personally appeared , who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /thee executed the same in his /her /their
authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
T certify Linder PENALTY OF PERJURY under the laws of the State of California that
the - foregoing paragraph. is true and correct.
WTT.NFSS my hand and official seal.
(Seal)
Notary Public
Exhibit 2,3 - 3
\3733636.3
LEGAL DESCRXPTION
THE LAND REFERRCD TO HEREIN BELOW IS SITUATED IN THE UNINCORPORATED AREA, COUNTY OF SANTA
CLARA, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:
PARCEL ONE:
Parcel 1, as shown on that certain map entitled, ?PARCEL MAP MINOR LAND DIVISION LANDS OF VERIZON
CALIFORNIA INC. WHO ACQUIRED TITLE AS WESTERN CALIFORNIA. TELEPHONE COMPANY, A
CORPORATION, 7260.OR -714, TOWN OF LOS GATOS, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA ?,
which map was filed in the office of the Recorder of the County of Santa Clara, State of California on May 10,
2007 in Book 813 of Maps at Pages 51 and 52.
PARCEL TWO:
An easement for Ingress and Egress, Installing, repairing, accessing, operating and maintaining drainage,
sewer, water, gas, power and /or other utility conduits, lines or infrastructure, inclusive of telecommunication
lines, over and across that certain portion of Parcel 2 as shown on that certain map entitled, ?PARCEL MAP
MINOR LAND DIVISION LANDS OF VERIZON CALIFORNIA INC. WHO ACQUIRED TITLE AS WESTERN
CALIFORNIA TELEPHONE COMPANY, A CORPORATION, 7260 -OR -714, TOWN OF LOS GATOS, COUNTY OF
SANTA CLARA, STATE OF CALIFORNIA ?, which map was filed In the offlce of the Recorder of the County of
Santa Clara, State of California on May 10, 2007 in Book 813 of Maps at Pages 51 and 52, and designated on
said map as "INGRESS /EGRESS, UTILITY AND DRAINAGE EASEMENTTO BENEFIT PARCEL 1 ", and as further
defined in that certain Declaration of Easement recorded May 10, 20D7 as Instrument No. 19426046, Official
Records.
Said easement is to be appurtenant to, and for the benefit of, Parcel 1 as said Parcel is shown on said Parcel
Map,
PARCELTHREF
An easement for Ingress and Egress, instbiling, repairing, accessing, operating and maintaining drainage,
sewer, watts conduits and other utility and irrigation purposes ovat°and across that certain portion of Parcel 2
as shown on that certain map entitled, ?PARCEL MAP MINOR LAND DIVISION LANDS OF VERI7.ON
CALIFORNIA INC, WHO ACQUIRED TITLE AS WESTERN CALIFORNIA TI LEPHONE COMPANY, A
CORPORATION, 7260 °OR -711, TOWN OF LOS GATOS, COUNTY OF SANTA CLARA, STATE OF CALIFORNIA?,
which map was filed in the office of the Recorder of the County of Santa Clara, State of California on May 10,
2007 in Book 813 of Maps at Pages 51 and 52, and designated In said map as "10'- WIDE WATER EASEMENT
1 - 0 BENEFIT PARCEL 1 ", and as further defined in that certain Declaration of Easement recorded May 10, 2007
as Instrument No. 19426046, Official Records,
Said easement is to be appurtenant to, and for the benefit of, Parcel 1 as said Parcel is shown on said Parcel
Map,
APN:424 -31 -064